NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEN D. PATTON, No. 11-36023
Petitioner - Appellant, D.C. No. 3:09-cv-01051-HU
v.
MEMORANDUM*
D. MILLS,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 4, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
Steven D. Patton appeals the district court’s denial of a writ of habeas corpus
for failure to exhaust his federal constitutional claim as required by the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(b)(1)(A).
We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Patton pleaded guilty to one count of attempted unlawful sexual penetration,
two counts of first-degree sexual abuse, one count of third-degree sexual abuse,
and one count of third-degree attempted rape in Washington County, and the plea
agreement provided that he would not face charges in Clackamas County arising
out of a different sexual assault. However, Patton was indicted in Clackamas
County as well, and pleaded guilty to one count of third-degree rape. He filed a
petition for post-conviction relief in the Oregon state courts, alleging, inter alia,
that his Washington County attorney provided ineffective assistance of counsel by
allowing him to sign a plea agreement with an unenforceable global settlement
provision. During state post-conviction hearings, however, Patton’s post-
conviction attorney waived the ineffective assistance of counsel claim, stating,
“[Patton’s] attorney, at the time, in Washington County appears to have been doing
everything right.” He argued instead that the violation of petitioner’s rights was
caused by the district attorneys’ failure to carry out the terms of the plea
agreement. The state post-conviction court granted Patton’s petition and vacated
his Clackamas County conviction.
Patton eventually filed a federal habeas petition, claiming that he received
ineffective assistance of trial counsel and should have been allowed to withdraw
his guilty pleas in both Washington and Clackamas County. To exhaust federal
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constitutional claims, petitioners must fairly present the claims in “each
appropriate state court.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). By waiving
his ineffective assistance of counsel argument during the state post-conviction
hearing, Patton failed to fairly present the claim to the state courts. In addition, the
state post-conviction court’s remedy gave Patton exactly what he bargained for in
the Washington County plea agreement. Thus, he has suffered no prejudice and he
is not entitled to further relief. The district court’s denial of his habeas petition for
failure to exhaust his ineffective assistance of counsel claim is therefore
AFFIRMED.
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